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Lawyer or Union Representative (for Employees subject to Investigation)?

No matter your position, being informed that you are under investigation will cause, at least, some amount of discomfort. The consequences of an investigation can result in punitive actions ranging from discharge to potential criminal investigation evidence that may lead to incarceration. Union members have a protected right to representation during investigatory interviews that the employee reasonably believes may result in disciplinary action. See NLRB v. Weingarten 420 U.S. 251 (1975). Speaking from personal experience, in these situations, two heads work better than one.  Unless your company’s provides a higher  degree of protection, because of the risks that may result from an investigation, at the very least, the employee should demand representation. The most important phrase to remember is, “If you would like to continue this conversation, I demand that my representative be present.”

The following factors may be relevant in evaluating the proper course of action.

Cost

Unfortunately, your Department will not invest in your defense; only, your prosecution. This means, that your Department will not invest in finding you a representative. You will have to acquire one on your own.

The cost of a lawyer takes several factors into account. In California, under Rule 4-200, the following factors are taken into account:

  1. The amount of the fee in proportion to the value of the services performed.
  2. The relative sophistication of the member and the client.
  3. The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
  4. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
  5. The amount involved and the results obtained.
  6. The time limitations imposed by the client or by the circumstances.
  7. The nature and length of the professional relationship with the client.
  8. The experience, reputation, and ability of the member or members performing the services.
  9. Whether the fee is fixed or contingent.
  10. The time and labor required.
  11. The informed consent of the client to the fee.

Alternatively, the cost of a union rep is free.

Verdict: Union Rep

Familiarity with Agency’s Policies and Procedures

The potential benefit in acquiring a union representative can be that they have attended similar investigations. In some cases, the representative may have attended an interrogation where questions are identical. This may cut down on the “surprise-factor” that investigators exploit in order to acquire an answer that has not been fully thought out by the response-giver.

Having this information about the agency’s patterns are one thing. Knowing how to properly defend against an interrogation is quite another. The information your union representative has about the patterns of your department is invaluable to an attorney. Thus, the ideal scenario is to have both an attorney and an knowledgeable union representative in communication and cooperation.

Verdict: Both

Familiarity with Legal Rules

During the process of an investigation, the investigating agency is attempting to conclude whether the allegations against you are substantiated, unsubstantiated or inconclusive. This process is done by way of facts. The rules that regulate the admissibility of these facts are governed by the Federal or California Rules of Evidence. Each and every bit of information used must pass every rule of evidence, i.e., be legally and logically relevant, not be excluded by public policy, not improper character, evidence, not be hearsay and if an exception applies, the exception applies properly, evidence is properly authenticated, there is a proper foundation for the question asked, etc. In essence, the investigator should not have an easy time obtaining information for the purpose of taking a punitive action against you. Your representative may have your interests as the highest priority but unless s/he demands that you be investigated fairly under what the court has agreed as a fair set of criteria for civil trials, there is a danger of serious jeopardy.

In my experience, a union representative’s objections are much more informal. It is possible that an investigator will merely reword the interrogatory (while engaging in the same inappropriate line of questioning) to elude the non-lawyer representative.

Unless the union representative is familiar with the rules of evidence to, at least, the level of an attorney, it is safer to use a lawyer.

Verdict: Lawyer

Power

Unions have several tools to protect their representatives. For example, unions can provide access to defensive measures such as a letter-writing campaign, may have experience with the application of MOUs and protections that may be afforded therein, and, of course, deny management’s access to labor services. However, as some union representatives and members are painfully aware, what the union should do and what the union actually does is not always in sync. Concerted action by union members for another union member requires the cooperation of many union members and, sometimes, it simply is not practical to resort to large-scale action against a Department.

In contrast, a lawyer’s actions are guided solely for your benefit. If you are wrongfully discharged there is a good chance that the Department’s hands are not clean. If that is the case, a lawyer will advise process. There is no need to obtain board approval to take remedial action to protect you.

Taking action could mean filing paperwork with the court. These documents become public record. Members of the general public routinely stay abreast and scrutinize these documents because they have a tendency to exposes any dysfunctional inner workings of an agency.

Additionally, recruiting and retaining talent is a considerably resource-intensive, lengthy and expensive undertaking. Seeing that the Department is a haven for unsavory behavior may be enough to discourage any reasonable eager and well-qualified job-seeker looking for a safe place to continue their career.

Verdict: Both

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